STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Gregory C., FILED
Respondent Below, Petitioner
November 20, 2015
RORY L. PERRY II, CLERK
vs) No. 14-1109 (Jefferson County 13-D-351) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Victoria C.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Gregory C., by counsel David A. Camilletti appeals the July 22, 2014, order of
the Family Court of Jefferson County and the September 23, 2014, order of the Circuit Court of
Jefferson County in this divorce action. Respondent Victoria C., by counsel Stephanie E. Scales-
Sherrin, filed a response.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
The parties married on December 22, 2004, and lived together from approximately 2000
until 2013. Two children were born of the parties, one child prior to the marriage, born
December 9, 2002, and another who is deceased. Petitioner husband is a flooring installation
contractor. Respondent wife stayed at home to raise the children and had an internet-based sales
business. On October 2, 2013, Respondent wife filed a petition for divorce in the Family Court
of Jefferson County, West Virginia. After a contested hearing on June 2, 2014, a Final Order was
entered by the family court on July 22, 2014.
The family court order found (1) that the wife would keep the marital residence
purchased by the parties prior to the marriage in the wife’s name only; (2) that the husband
would be entitled to credit for the reduction in principle of the mortgage of the marital residence;
(3) that the husband would be assessed the net value of his separate binding business at
$5,000.00 and the net value of his flooring business at $1,000.00; (4) that the wife would be
assessed personal property retained at the value of $12,275.00; (5) that the wife would be
credited with the assumption of marital debt totaling $2,584.00; (6) that the husband would be
credited with the binding business credit card debt; (7) that the wife would be entitled to credit
for the 2005 and 2006 IRS payments of the husband’s pre-marital tax debt in the amount of
$17,749.10; (8) that the husband should be given credit for the medical bills in his name but only
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if he pays them; (9) that the wife will be credited with an increase in her taxes for the
respondent’s use of the minor child as a tax deduction for 2013; (10) that the husband shall pay
$1,000.00 of wife’s attorney’s fees; (11) that the husband owes the wife $3,501.13 in equitable
distribution; (12) that the husband is attributed income in the amount of $36,000.00; (13) that the
wife stayed home for ten years to care for the parties’ child; and (14) that the husband shall pay
spousal support in the amount of $1,000 per month.
Petitioner husband appealed the order of the family court to the Circuit Court of Jefferson
County. The circuit court found that the family court did not abuse its discretion on any issue,
nor did the family court commit any error and denied the appeal. Petitioner now appeals the July
22, 2014, order of the family court and the September 23, 2014, order of the Circuit Court of
Jefferson County.
Petitioner asserts several assignments of error on appeal. Petitioner claims that the circuit
court abused its discretion and committed reversible error by (1) finding that petitioner has
“attributable” income of $36,000.00 per year, when a substantial portion of that income consists
of a gift from the petitioner’s mother; (2) finding that the family court did not err in establishing
an award of permanent spousal support to respondent in the amount of $1,000.00 per month; (3)
upholding the family court award to respondent of a reimbursement of one hundred percent
(100%) of the marital funds paid towards the appellant’s premarital tax debt; (4) refusing
petitioner immediate credit for his work-related medical bills accrued during the marriage; (5)
upholding the final divorce order of the family court when the family court announced findings
of fact in open court and materially altered those in the final order without holding any further
hearing and taking of further evidence; and (6) upholding the family court’s denial of the
petitioner’s request for financial disclosure by not requiring the respondent to make a full
financial disclosure to the family court.1
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Petitioner raises three additional assignments of error. Petitioner asserts as an
assignment of error that “[i]t is an abuse of discretion and reversible error for the Family Court to
find that the Appellant is entitled to credit for reducing the mortgage principle of the parties’
marital home and credit for increasing the value of the marital home by improvements and then
not actually crediting the Appellant with the full value of said improvements and principle
reduction.” Petitioner claims that he is entitled to $6,000 credit for improvements made to the
domicile. However, we decline to address this assignment of error. A review of the record
reveals that the petitioner and respondent agreed on the record during the final hearing to
$3,000.00 credit for equitable distribution for the work petitioner performed on the home. “A
litigant may not silently acquiesce to an alleged error, or actively contribute to such error, and
then raise that error as a reason for reversal on appeal. Syl. Pt. 1, in part, Maples v. W.Va. Dep’t
of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410 (1996).” Syl. Pt. 4,
PNGI Charles Town Gaming, LLC v. Reynolds, 229 W.Va. 123, 727 S.E.2d 799 (2011).
Petitioner asserts as an additional assignment of error that the circuit court abused its
discretion by upholding a family court order that does not make adequate findings of fact
regarding all of the disputed issues between the parties. Petitioner claims that the family court’s
final order did not contain findings of fact sufficient to establish the attribution of $36,000.00 per
year in income to petitioner; did not contain findings of fact regarding petitioner’s improvements
(continued . . .)
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Generally,
[i]n reviewing a final order entered by a circuit court judge upon a review
of, or upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous
standard, and the application of law to the facts under an abuse of discretion
standard. We review questions of law de novo.
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). Further,
to the marital residence; and did not contain findings of fact regarding petitioner’s contributions
to the reduction of the mortgage principle of the marital residence. Petitioner raises the issue of
sufficient findings of fact regarding the attribution of $36,000.00 for the first time on appeal to
this court. “Errors assigned for the first time on appeal will not be regarded in any matter of
which the trial court had jurisdiction or which might have been remedied in the trial court had
objection been raised there.” Syl. Pt. 1, State v. Berry, 227 W.Va. 221, 707 S.E.2d 831 (2011)
(citation omitted). Therefore, we decline to consider that particular portion of the assignment of
error. In addition, the record reflects that a stipulation between the parties regarding petitioner’s
improvements to the marital residence and petitioner’s contributions to the reduction of the
mortgage principle. As stated previously, “A litigant may not silently acquiesce to an alleged
error . . . and then raise that error as a reason for reversal on appeal.” Syl. Pt. 1, in part, Maples v.
W. Va. Dep’t of Commerce, Div. of Parks and Recreation, 197 W.Va. 318, 475 S.E.2d 410
(1996). See Syl. Pt. 4, PNGI Charles Town Gaming, LLC. Therefore, we decline to reverse on
those stated grounds.
Petitioner claims further that he is entitled to credit for credit card debt in the amount of
$2,400.00. However, petitioner fails to set forth legal argument regarding this assignment of
error. West Virginia Rule of Appellate Procedure 10(c)(7) outlines the requirements for briefs:
Argument - The brief must contain an argument exhibiting clearly the points of
fact and law presented, the standard of review applicable, and citing the
authorities relied on, under headings that correspond with the assignments of
error. The argument must contain appropriate and specific citations to the record
on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal. The Court may
disregard errors that are not adequately supported by specific references to the
record on appeal.
Moreover, it is the petitioner’s burden to show the error in judgment of which he complains. See
Syl. Pt. 2, WV Dep’t. of Health & Human Resources Employees Federal Credit Union v.
Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004). Accordingly we decline to consider this
particular assignment of error.
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“In the absence of a valid agreement, the trial court in a divorce case shall
presume that all marital property is to be divided equally between the parties, but
may alter this distribution, without regard to fault, based on consideration of
certain statutorily enumerated factors, including: (1) monetary contributions to
marital property such as employment income, other earnings, and funds which
were separate property; (2) non-monetary contributions to marital property, such
as homemaker services, child care services, labor performed without
compensation, labor performed in the actual maintenance or improvement of
tangible marital property, or labor performed in the management or investment of
assets which are marital property; (3) the effect of the marriage on the income-
earning abilities of the parties, such as contributions by either party to the
education or training of the other party, or foregoing by either party of
employment or education; or (4) conduct by either party that lessened the value of
marital property. W.Va.Code § 48-2-32(c) (1986).” Syllabus point 1, Somerville
v. Somerville, 179 W.Va. 386, 369 S.E.2d 459 (1988).
Syl. Pt. 1, Sellitti v. Sellitti, 192 W.Va. 546, 453 S.E.2d 380 (1994)
Petitioner first asserts that the circuit court erred in upholding the family court’s finding
that petitioner had “attributable income” of $36,000.00 per year. Petitioner asserts that a large
portion of his income is in the form of a gift from his mother, which cannot be used as evidence
of additional income. The circuit court found that petitioner’s financial statement stated that he
made $2,780.00 per month, and that petitioner had the ability to earn income due to his
substantial experience installing carpets, hardwood floors and tile. Based upon these findings, the
circuit court found that the family court did not err in attributing income to petitioner in the
amount of $36,000.00.
We agree. We have held,
“‘[a]ttributed income’ means income not actually earned by a parent, but
which may be attributed to the parent because he or she is unemployed, is not
working full time, is working below full earning capacity, or has non-performing
or under-performing assets. [W Va.Code § 48–1–205 (2008) ]. Attributed income
consists of moneys which a support obligor should have earned had he or she
diligently pursued reasonable employment opportunities, or reasonably utilized,
applied, or invested his or her assets.” Syl. pt. 4, Porter v. Bego, 200 W.Va. 168,
488 S.E.2d 443 (1997).
Syl. Pt. 2, Melinda H. v. William R., 230 W.Va. 731, 742 S.E.2d 419 (2013). Petitioner’s
financial statement indicated that petitioner received income in the amount of $2,278.00 per
month. In addition, the record is replete with evidence that petitioner is a highly skilled, and has
substantial expertise installing carpets, hardwood floors, and tile. Further, there is evidence that
in past years, petitioner earned annual income of at least $60,000 per year, and petitioner testified
at the final hearing that he considers the monetary assistance received from his mother to be a
“loan” and not a gift. Accordingly, we find the circuit court did not abuse its discretion in
attributing income to petitioner in the amount of $36,000.00 per year.
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Petitioner’s second assignment of error is that the family court abused its discretion by
awarding permanent spousal support in the amount of $1,000 per month to his wife. Petitioner
argues that the family court did not consider the factors to be considered in an award of child
support pursuant to West Virginia Code § 48-6-301. The circuit court found that pursuant to
West Virginia Code § 48-6-301(4)2, and West Virginia Code § 48-6-301(8)3 that the award of
spousal support was appropriate, and that the family court did not abuse its discretion. We agree.
West Virginia Code § 48-6-301 outlines factors to be considered in an award of spousal
support. West Virginia Code § 48-6-301(4) requires the courts to consider the income-earning
abilities of the parties, and West Virginia Code § 48-6-301(8) requires the courts to consider
whether a party postponed or relinquished any employment educational, or economic
opportunities during the marriage. The circuit court found that pursuant to an agreement between
the parties, respondent stayed home with the parties’ child, in lieu of earning income outside of
the home. The circuit court also found that petitioner testified that she looked extensively for
work but was only able to obtain seasonal employment. The circuit court further found that the
arrangement between the parties for respondent to stay home impaired respondent’s ability to
obtain employment. Based upon the above outlined factors, we find no error in the circuit court’s
findings and find no abuse of discretion.
Petitioner next asserts that the circuit court erred in upholding the family court’s
reimbursement to respondent of one hundred percent of the marital funds paid towards
petitioner’s premarital tax debt. Prior to the marriage, petitioner incurred a tax liability to the IRS
in the amount of $17,149.10. Petitioner asserts that respondent is only entitled to 50%
reimbursement of the marital funds, pursuant to our holding in Downey v. Kamka, 189 W.Va.
141, 428 S.E.2d 769 (1993). However, petitioner’s argument misstates our holding in Downey.
In Downey, the circuit court found that the wife was required to pay one-half of the tax debt
which her husband acquired prior to their marriage. Id., 189 W.Va. at 145, 428 S.E.2d at 773.
This Court overruled the circuit court and found that the wife was entitled to be reimbursed for
one half of the debt, or that the husband was responsible for one hundred percent of his
premarital debt, holding, “the circuit court did err in requiring the appellant to pay one-half of the
appellee’s tax indebtedness which was incurred prior to the marriage, and thus, the appellee shall
reimburse the appellant for one-half of the premarital tax debt which was paid with marital funds
. . . .” Downey, 189 W.Va. at 145, 428 S.E.2d at 773. Similarly, we find no abuse of discretion in
the circuit court’s order, and decline to reverse on that ground.
2
West Virginia Code § 48-6-301(4) requires the court to consider “[t]he income-earning
abilities of each of the parties, based upon such factors as educational background, training,
employment skills, work experience, length of absence from the job market and custodial
responsibilities for children[.]”
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West Virginia Code § 48-6-301(8) requires the court to consider “[w]hether either party
has foregone or postponed economic, education or employment opportunities during the course
of the marriage[.]”
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Petitioner next claims that the circuit court erred in failing to give him immediate credit
for medical bills accrued during the marriage. Petitioner asserts that pursuant to West Virginia
Code § 48-7-103, he is entitled to immediate credit for medical bills in the amount of $7500, for
injuries sustained during the marriage. At the final hearing, respondent objected to the inclusion
of these bills, claiming that petitioner had not paid them, and did not intend to pay them. “In a
divorce suit the finding of fact of a trial chancellor based on conflicting evidence will not be
disturbed on appeal unless it is clearly wrong or against the preponderance of the evidence.” Syl.
Pt. 4, in part, Sellitti (citations omitted). Upon review, we find no error in the circuit court’s
decision to uphold this ruling. The record reflects that, although petitioner submitted the medical
bills for consideration, there is no evidence that petitioner paid the debt, or intended to pay the
debt. Further, the circuit court upheld the family court’s decision that respondent would become
responsible for her portion of the medical bills once petitioner provided proof that he in fact paid
those bills. Under these facts, we find the circuit court did not abuse its discretion in upholding
this finding of the family court, and decline to reverse on that ground.
Petitioner also argues that the family court erroneously made certain findings at the final
hearing, and then amended those findings in the Final Order without taking further evidence.
Petitioner asserts that prior to the entry of the final order, the equitable distribution chart revealed
that respondent owed petitioner $5,636.75. Upon entry of the final order, the family court found
that petitioner owed respondent $2,501.00 and $1,000.00 in attorney’s fees. The circuit court
found that respondent properly filed a Motion for Relief from Clerical Error, pursuant to Rule
60(a) of the West Virginia Rules of Civil Procedure. Respondent requested an adjustment of
premarital tax debt which was erroneously distributed equally between the parties. The
adjustment corrected the previous figure of petitioner’s pre-marital tax debt from $8,874 to
$17,749, and that this change necessitated the amendment contained in the final order. We agree
with the circuit court.
“A trial court has the power in its discretion to modify, set aside or vacate any
judgment or decree during the term in which it is rendered. This power must be
exercised with a sound discretion and not in an arbitrary or capricious manner;
and if the trial court has acted in the exercise of a sound discretion an appellate
court will not interfere except for the most cogent reasons.
Manypenny v. Graham, 149 W.Va. 56, 64, 138 S.E.2d 724, 730 (1964) (citing Parkersburg
National Bank v. Neal, 28 W.Va. 744 [(1886)]). See also Syl. Pt. 4, Thompson v. Buffalo Land &
Coal Co., 77 W.Va. 782, 88 S.E. 1040 (1916). (“A court has jurisdiction over its final decrees
during the term at which they are made, and may set them aside at any time before
adjournment.”) As we earlier held that petitioner is responsible for the entire amount of his pre
marital tax debt, it was necessary for the family court to re-calculate the equitable distribution
claims. Accordingly, we find no error.
Petitioner also claims the circuit court erred in upholding the family court’s denial of the
petitioner’s request for financial disclosure by not requiring the respondent to make a full
financial disclosure to the family court, particularly after petitioner filed a Motion for Financial
Disclosure. West Virginia Code § 48-7-203 requires that the parties disclose financial
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information on a form prepared by this Court.4 Petitioner claims that respondent was not required
to provide evidence regarding income from an internet business that respondent runs out of her
home. The circuit court found that petitioner mischaracterized the nature of respondent’s
financial disclosures, and found that respondent provided a financial statement, and testified to
her seasonal employment and concomitant income. The circuit court also found that petitioner
provided her 2013 W-2 Wage and Tax Statement, employment pay stubs, and PayPal expense
statements. The circuit court found further that petitioner chose not to cross-examine petitioner
regarding these disclosures.
We have held, that the statute regarding financial disclosure, “requires a full disclosure of
one spouse’s financial assets to the other spouse at the time of divorce, and contemplates a
meaningful hearing on the subject of equitable distribution of property at which the spouse
submitting financial data may be cross-examined concerning the nature, origin and amount of
assets.” Syl. Pt. 2, Mitchell v. Mitchell, 205 W.Va. 203, 517 S.E.2d 300 (1999) (citation omitted).
Although the family court did not require respondent to submit an additional Financial
Statement, we find the circuit court did not err in finding that the family court did not abuse its
discretion. Respondent provided evidence of her online business in the form of her PayPal
expense statements, and according to the record, petitioner’s counsel had the opportunity to
cross-examine respondent regarding this income. Accordingly, we find no error.
4
West Virginia Code §48-7-203 provides,
The supreme court of appeals shall prepare and make available a standard form
for the disclosure of assets and liabilities required by this part. The clerk of the
circuit court and the secretary-clerk of the family court shall make these forms
available to all parties in any divorce action or other action involving child
support. All disclosure required by this part shall be on a form that substantially
complies with the form promulgated by the Supreme Court of Appeals. The form
used shall contain a statement in conspicuous print that complete disclosure of
assets and liabilities is required by law and deliberate failure to provide complete
disclosure as ordered by the court constitutes false swearing.
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For the foregoing reasons, we affirm.
Affirmed.
ISSUED: November 20, 2015
CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II
DISSENTING:
Justice Robin Jean Davis
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